IN THE CASE OF: BOARD DATE: 10 March 2020 DOCKET NUMBER: AR20190012540 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20090000622 on 14 April 2009. Specifically, he requests his under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 21 August 2019 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090000622 on 14 April 2009. 2. The applicant's current request is based on an alleged mishandling of his urine sample, which constitutes new argument. 3. The applicant states he feels his chain of command mishandled the urine samples; he didn't then use drugs and he doesn't now use drugs. In preparation for deployment to Panama, the unit was given a urinalysis. The urine samples were not individually placed in individual bags but were placed on the table all at the same time. Because of this there may have been a mix-up [of samples] and he was unfairly punished. 4. The applicant enlisted in the Regular Army on 7 August 1985 with an immediate reenlistment on 8 March 1988. 5. While stationed at Fort Ord, CA, the applicant submitted a urine sample during a random unit urinalysis test on 2 August 1989. The results indicated he had used marijuana between on or about 2 July 1989 through on or about 2 August 1989. 6. The applicant, submitted a second urine sample during a random unit urinalysis test on 19 September 1989. The results indicated he had used marijuana between on or about 19 August 1989 through on or about 19 September 1989. 7. The applicant received nonjudicial punishment (NJP) on 1 December 1989, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), based on his two previous positive urinalysis samples. His punishment included his reduction in rank/grade to private/E-1, forfeiture of $50.00 pay per month for two months, 30 days of extra duty, and a verbal admonition. 8. The applicant's unit participated in Operation Just Cause during the period 20 December 1989 through 12 January 1990. 9. The applicant's unit commander notified the applicant on 4 January 1990 of his intent to initiate actions to separate the applicant from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, by reason of misconduct (abuse of illegal drugs). 10. The applicant consulted with legal counsel on 4 January 1990. a. He was advised of the basis for the contemplated discharge, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant acknowledged the proposed discharge. He acknowledged he understood that if he was discharged with a general discharge he could be deprived some or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could expect to encounter substantial prejudice in civilian life if he received a general discharge. c. He was advised he could submit any statements he desired in his own behalf but waived this option. 11. The applicant's unit commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, Chapter 14. The separation authority approved the applicant's discharge on 22 January 1990, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – drug abuse. 12. The applicant was discharged on 26 January 1990. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, and his service characterization was under honorable conditions (general). His DD Form 214 further shows: * he was discharged in the rank/grade of private/E-1 * he had 4 years, 5 months, and 20 days of active service with no lost time * he was awarded the Army Achievement Medal and the Army Good Conduct Medal 13. The ABCMR denied the applicant's request for an upgrade on 15 April 2009, based on an undocumented diagnosis of post-traumatic stress disorder (PTSD), indicating the applicant was a drug abuser prior to his unit ever deploying to Panama. He was reduced for those drug offenses prior to his unit ever deploying to Panama. Drug abuse is inconsistent with Army values and does not meet the acceptable standards of conduct for Soldiers. 14. The Board should consider the applicant's prior honorable period of active duty and statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct and the reason for his separation. The Board found that the applicant’s DD Form 214 reflected continuous honorable service for a previous period of service. The Board found insufficient evidence of in- service mitigation to overcome the misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090000622 on 14 April 2009. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action was to be to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. d. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ. 3. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD, the Department of Defense (DoD) acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct that served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues or continued for an extended period of time. 4. Although the DoD acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a UOTHC characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD- related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 5. In view of the foregoing, the Secretary of Defense directed the Service DRBs and Service BCM/NRs, on 3 September 2014 ["Hagel Memorandum"], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC, who have been or were diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider, in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 6. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 ["Kurta Memorandum"]. The memorandum directed the Service DRBs and BCM/NRs to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, TBI, sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each Veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many Veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD, TBI, or behaviors commonly associated with sexual assault or sexual harassment, and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018 ["Wilkie Memorandum"], regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190012540 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190012540 5 ABCMR Record of Proceedings (cont) AR20190012540 4